I got a capital committed by a 17 year old in 2009. Under our statute, the ONLY sentence available is LWOP. However, in light of Miller, I assume he will be under a regular life (30 year eligibility for parole) or capital life with parole (40 year eligibility for parole)? Which one? LWOP in this case seems to be off the table.

I tend to agree with Shannon Edmond's evaluation of the situation based on this new decision. It appears that we now have a capital murder offense for which both punishments under the Penal Code, a death sentence and LWOP, have now been held unconstitutional when the defendant was 17 or younger at the time of offense commission. I don't think that it is possible to impose some other sentence for capital murder that is not authorized under the Penal Code. So my question becomes what are our options until the Legislature meets in January? Are we left with proceeding on a murder charge and trying to obtain a lengthy sentence as our only option at this point?

Originally posted by Tuck:I got a capital committed by a 17 year old in 2009. Under our statute, the ONLY sentence available is LWOP. However, in light of Miller, I assume he will be under a regular life (30 year eligibility for parole) or capital life with parole (40 year eligibility for parole)? Which one? LWOP in this case seems to be off the table.

I don't think you can assume either parole law applies.

What if the governor grants a blanket commutation of the LWOP sentences of the two-dozen-or so TDCJ inmates currently doing time for capital murders committed at age 17, and in doing so indicates that he will similarly commute all other 17yo LWOP'ers in the future. Can you point to that as "saving" the LWOP sentence required by statute?

"But decency is not the same as leniency. A decent society protects the innocent from violence. A mature society may determine that this requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty."

Originally posted by Ted Hake:It appears that we now have a capital murder offense for which both punishments under the Penal Code, a death sentence and LWOP, have now been held unconstitutional when the defendant was 17 or younger at the time of offense commission.

Not so fast. We already did away with LWOP for certified juveniles (14-16yoa) in 2009, so isn't the problem only in regard to 17yo capital murderers? Or am I missing something?

Shannon, i believe you address correctly the problem as it stands today. The miller opinion forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. As to all juveniles certified to stand trial for capital murder, since 2009 they can only receive a life with parole sentence for conviction of capital murder. Therefore, as you state, the issue is what happens to 17 year olds that fall in this category. I think the issue in the future will be an attack on the mandatory life with parole sentencing scheme that currently exits, but time will answer this issue. Hg

i decided to make it into double digits with this response! i read the trib article, but what caught my eye was this line in the opinion, "And we view that concept (poroportionality) less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society" therefore, where else will the Supreme Court take us to disclose our perceived lack of maturity?

Ok, finally read the whole opinion. They Court leaves open the "possibility" of LWOP for juveniles convicted of capital murder but strongly hint it will be very rare (possibly unconstitutional).

Unfortunately, all of this speculating doesn't help my current dilemma. I got a 17 year old waiting to be indicted for capital murder in my jail right now. When I indict him, he is charged under a statute that has no legal (constitutional) punishment. Do we get to "pick" what punishment we like? I doubt it. Do we get to "declare" that he automatically gets Life with parole?

Is the statute completely unconstitutional as applied to a 17 year old?

As Ted pointed out earlier, I think the only option for now is to try him for murder instead of capital murder (and be thankful the Lege eliminated probation eligibility for murder back in 2007 or else you'd be looking at being busted down from LWOP to probation!). The earliest we will get a legislative solution for this court-created problem is June 2013, so you could try to wait them out, but I'm sure defense counsel will change his usual tune and scream for a speedy trial now!